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Citizens Property Insurance Corp. v. Calonge

Florida Court of Appeals, Third District

April 18, 2018

Citizens Property Insurance Corporation, Appellant/Cross-Appellee,
v.
Rosa Calonge, Appellee/Cross-Appellant, and Wilson Imbert and Judy Imbert, Lazaro Gomez Cruz and Judith Carreras Lopez, Francisco Granados and Daisy Granados, and Anthony Calvi, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeals from non-final orders from the Circuit Court for Miami-Dade County Lower Tribunal Nos. 14-32096; 16-3469; 15-30091; 16-6056; 15-15114, Antonio Arzola, Migna Sanchez-Llorens, and Monica Gordo, Judges.

          Link & Rockenbach, P.A., and Kara Berard Rockenbach (West Palm Beach), for appellant/cross-appellee.

          Barnard Law Offices, L.P., and Andrew C. Barnard, for appellees/cross-appellant.

          Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.

          SCALES, J.

         In these five consolidated appeals, we review virtually identical non-final orders that deny, without elaboration, Appellant Citizens Property Insurance Corporation's ("Citizens") motions to dismiss Appellees'[1] claims. While Citizens's dismissal motions assert its sovereign immunity from Appellees' claims, we do not have jurisdiction to review the trial courts' unelaborated non-final orders denying Citizens's dismissal motions. Therefore, we dismiss each of Citizens's appeals.

         I. Relevant Background

         Citizens sought to dismiss various counts in Appellees' complaints. Citizens argued that these counts, irrespective of how they were couched, constitute disguised, first-party bad faith claims for which Citizens enjoys sovereign immunity under section 627.351(6)(s) of the Florida Statutes and the case of Citizens Property Insurance Corp. v. Perdido Sun Condominium Association, 164 So.3d 663 (Fla. 2015). The trial courts adjudicated each such dismissal motion by entering an unelaborated order that simply denied Citizens's motion. Citizens appealed each of these non-final orders.

         In its initial briefs to this Court, Citizens argues that the trial court erred by denying its dismissal motions; and, because Citizens's dismissal motions were premised upon sovereign immunity claims, the non-final dismissal orders are subject to interlocutory review. See Fla. R. App. P. 9.130(a)(3)(C)(xi). In their answer briefs to this Court, Appellees each assert, among other things, that, because the appealed interlocutory orders are unelaborated, the orders lack the requisite determination to allow appellate review under rule 9.130(a)(3)(C)(xi). We consolidated these appeals because the threshold jurisdictional issue for each appeal is the same: whether we have jurisdiction to review an unelaborated non-final order denying Citizens's motion to dismiss when the motion asserts entitlement to sovereign immunity.

         II. Analysis

         Our appellate jurisdiction to review non-final orders is limited to only those orders specifically scheduled in rule 9.130(a)(3). See Keck v. Eminisor, 104 So.3d 359, 363-64 (Fla. 2012). Citizens relies on rule 9.130(a)(3)(C)(xi) to vest this Court with jurisdiction to hear the otherwise non-reviewable interlocutory orders. This rule reads as follows: "Appeals to the district courts of appeal of non-final orders are limited to those that . . . determine . . . that, as a matter of law, a party is not entitled to sovereign immunity."

         In each order on appeal, the trial court states merely that Citizens's motion to dismiss was denied. In none of these orders did the trial court state as a basis for its denial that Citizens was not entitled to the sovereign immunity shield from suit. While the dissent assiduously argues to the contrary, we are constrained by this Court's jurisprudence and the text of the relevant rule to limit our jurisdictional inquiry to the four corners of the appealed order. Put another way, in making our jurisdictional determination, we look only to the face of the trial court's order and do not penetrate the record with a searchlight to divine whether the trial court's undisclosed rationale warrants appellate review. Miami-Dade Cty. v. Pozos, 42 Fla.L.Weekly D418 (Fla. 3d DCA Feb. 15, 2017); Citizens Prop. Ins. Corp. v. Sosa, 215 So.3d 90 (Fla. 3d DCA 2016).

         A. This Court's Jurisprudence

         In Pozos, the plaintiff claimed that the County was liable for personal injuries suffered after plaintiff was shot at a County park. The County filed a summary judgment motion asserting sovereign immunity, and the trial court entered an unelaborated order denying the County's motion. The County appealed this non-final order, arguing that this Court had jurisdiction to review the trial court's unelaborated order because the order impliedly determined, as a matter of law, that the County was not sovereignly immune from Pozos's claim. This Court dismissed the County's appeal for lack of jurisdiction because the trial court's order did not provide an explicit determination on the availability of the immunity defense, and because Florida's district courts are "without authority to make the determination on our own accord." Pozos, 42 Fla.L.Weekly D418.

         In Sosa, which bears some similarity to the instant case, Citizens appealed a non-final order in which the trial court denied Citizens' motion to strike certain bad faith allegations and to dismiss and/or strike certain counts of the complaint. On appeal, Citizens "characterize[ed] the trial court's order as one determining that it is not entitled to sovereign immunity as a matter of law . . . ." Sosa, 215 So.3d at 91. This Court dismissed the appeal for lack of jurisdiction, again because the trial court's order did not address sovereign immunity specifically. Id.

         Both Pozos and Sosa follow Florida Supreme Court jurisprudence dictating that Florida's district courts do not have jurisdiction to review a non-final order addressing immunity unless the order specifically states that the immunity defense is not available. Hastings v. Demming, 694 So.2d 718, 720 (Fla. 1997). While Hastings and its progeny[2] involve workers' compensation immunity rather than sovereign immunity, the jurisdictional rules authorizing the interlocutory appeals of orders relating to workers compensation immunity and sovereign immunity are identical in their wording, and therefore are analogous.[3] Because the drafters of these two rules chose to employ virtually identical language to define the contours of our interlocutory jurisdiction in the immunity context, we have no difficulty applying case law from workers' compensation immunity jurisprudence to inform our analysis of sovereign immunity jurisdiction. See State v. Hearns, 961 So.2d 211, 217 (Fla. 2007) ("We have held that where the Legislature uses the exact same words or phrases in two different statutes, we may assume it intended the same meaning to apply.")

         We do note that Hastings, Reeves and Culver arose from summary judgment determinations, yet the Florida Supreme Court has not distinguished between an order on a motion for summary judgment and an order on a motion to dismiss. Indeed, Reeves cites approvingly to Martin Electronics, Inc., v. Glombowski, 705 So.2d 26, 30 (Fla. 1st DCA 1997), in which the First District held that an unelaborated order deriving from a motion to dismiss and making no specific immunity determination, was not an appealable order. Reeves, 889 So.2d at 821.

         B. Text of the Relevant Rule

         Our reading of rule 9.130(a)(3)(C)(xi) - preventing interlocutory review of an unelaborated order - is consistent with the text of the rule, as well as the requirement that we are to construe narrowly the categories of non-final orders subject to interlocutory appeal. Walker v. Fla. Gas Transmission Co., 134 So.3d 571, 572 (Fla. 1st DCA 2014). The presence of the word "determine" in the rule is significant. The "non-final order[]" must "determine" that "a party is not entitled to sovereign immunity." Thus, the plain text of the rule requires that, for interlocutory review to be available, the order itself must actually adjudicate the sovereign immunity issue against the allegedly immune party. Nothing in the rule suggests that we may adduce or surmise such a determination by reviewing documents in the record apart from the trial court's written order. Such a search for jurisdiction within the record would lead to imprecise and even presumptuous conclusions. To allow a district court to make its jurisdictional determination by engaging in its own examination of the underlying record essentially would allow the district court to make the sovereign immunity determination in the first instance. Surely, such a search for jurisdiction would undermine the purpose of rule 9.130(a)(3) itself, which is to expressly circumscribe the categories of non-final orders subject to interlocutory review. Pozos, 42 Fla. Weekly D418.

         III. Conclusion

         The trial courts' non-final orders below merely said: "Denied." These orders did not determine, as a matter of law, that Citizens is not entitled to sovereign immunity. Therefore, we lack jurisdiction to review the challenged orders under rule 9.130(a)(3)(C)(xi), and dismiss the consolidated appeals.[4]

         Dismissed.

          SUAREZ, J., concurs.

          ROTHENBERG, C.J. (dissenting).

         In these five consolidated appeals, [5] we are presented with two questions: (1) whether we have appellate jurisdiction to review non-final orders that deny, without elaboration, motions to dismiss that only raise the issue of sovereign immunity from suit; and (2) if we reach the merits, whether the trial court erred by denying Citizens Property Insurance Corporation's ("Citizens") motion to dismiss the breach of contract and declaratory judgment claims pled in the five separate complaints filed by the Appellees, claims from which Citizens argues it is sovereignly immune because they are statutory bad-faith claims. As will be explained more fully below, I would answer both questions in the affirmative, reverse the orders on appeal, and remand with instructions to the trial courts to enter orders granting Citizens' motions to dismiss without prejudice to allow the Appellees to file amended complaints.

         BACKGROUND

         After the Appellees allegedly sustained accidental property damage to their real properties, they sued their insurer, Citizens, alleging various causes of action. Although the procedural history and the complaints in each of these five cases are somewhat different, the common issue in these appeals is whether the trial court erred by denying Citizens' motion to dismiss the breach of contract and declaratory judgment counts brought in each of the Appellees' complaints.

         In each case, Citizens moved to dismiss the breach of contract and declaratory judgment claims, arguing that these claims were actually disguised claims for statutory bad-faith under section 624.155(1), Florida Statutes (2014), for which Citizens is entitled to sovereign immunity as a matter of law. See Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass'n, 164 So.3d 663, 667 (Fla. 2015) (holding that Citizens has sovereign immunity from suit regarding statutory bad-faith claims). Although the trial court judges in these five cases entered orders denying Citizens' motions to dismiss the breach of contract and declaratory judgment claims, they failed to elaborate as to their reasoning either at the hearings on Citizens' motions or in the orders they issued.[6] Citizens timely appeals these non-final orders denying its motions to dismiss pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi), which provides that a party may appeal to the district court non-final orders that "determine . . . that, as a matter of law, a party is not entitled to sovereign immunity."

         I. Jurisdiction

         The majority dismisses Citizens' appeals for lack of jurisdiction based on its conclusion that the orders are not appealable under rule 9.130(a)(3(C)(xi) because the trial court's orders do not expressly state that as a matter of law, Citizens is not entitled to sovereign immunity. I respectfully submit that the majority's interpretation of rule 9.130(a)(3)(C)(xi) is unsupported by the plain language of the rule, the purpose of the rule, the relevant case law, and common sense. I would therefore deny each of the Appellees' motions to dismiss the appeals and decide these appeals on the merits.

         Our standard of review for the interpretation of procedural rules is de novo. Strax Rejuvenation & Aesthetics Inst., Inc. v. Shield, 49 So.3d 741, 742 (Fla. 2010). "Procedural rules should be given a construction calculated to further justice, not to frustrate it." Id. at 743 (quoting Singletary v. State, 322 So.2d 551, 555 (Fla. 1975)). "Our courts have long recognized that the rules of construction applicable to statutes also apply to the construction of rules." Brown v. State, 715 So.2d 241, 243 (Fla. 1998).

         A. The majority's interpretation is unsupported by the text of the rule

         As the majority correctly states, we are constrained by the text of the rule. Rule 9.130(a)(3)(C)(xi) provides as follows: "Appeals to the district courts of appeal of non-final orders are limited to those that . . . determine . . . that, as a matter of law, a party is not entitled to sovereign immunity." This text does not contain any words limiting the appeal of non-final orders to those orders that expressly determine that a party is not entitled to sovereign immunity. The word "determination, " from which the word "determine" derives, simply means "[t]he act of deciding something officially." Determination, Black's Law Dictionary (10th ed. 2014); see also Legally Determined, Black's Law Dictionary (10th ed. 2014) (defining "legally determined" as "decided by legal process"); Charter Sch. USA, Inc. v. John Doe No. 93, 152 So.3d 657, 661 (Fla. 3d DCA 2014) (concluding, in the context of analyzing Florida Rule of Civil Procedure 1.550, that "'determined' means the point in time when the trial judge, in this case signed an order ruling on the school's post-trial motions"). Indeed, if the word "determined" somehow signified an express statement, then the phrase "expressly determined" would be redundant. It is therefore clear from the text of rule 9.130(a)(3)(C)(xi) that a party's ability to appeal non-final orders under the rule is not as limited as the majority has found. In fact, it is only possible to reach the majority's conclusion if we add language to the rule.

         B. The majority's interpretation is in conflict with the purpose of the rule

         The purpose behind amending rule 9.130 to include rule 9.130(a)(3)(C)(xi) was to give meaningful effect to sovereign immunity from suit. This purpose would be arbitrarily frustrated if only those orders expressly denying entitlement to sovereign immunity were appealable. The Florida Supreme Court has specifically noted the importance of providing interlocutory review to parties who are entitled to sovereign immunity from suit but were denied that right at the trial court level. See Keck v. Eminisor, 104 So.3d 359, 360 (Fla. 2012).

         In Keck, when addressing whether interlocutory review should be available to defendants to appeal non-final orders denying motions for summary judgment based on a claim of sovereign immunity under section 768.28(9)(a), Florida Statutes (2005), the Florida Supreme Court stated the following:

[I]f a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant. If orders denying summary judgment based on claims of individual immunity from being named as a defendant under section 768.28(9)(a) are not subject to interlocutory review, that statutory protection becomes essentially meaningless for the individual defendant.

Id. at 366 (emphasis added). Thus, the Florida Supreme Court recommended a change to the rules of appellate procedure to allow for appeals "where an individual defendant who claims immunity under 768.28(9)(a) is denied that immunity and the issue turns on a matter of law." Id. at 369. Specifically, the Court requested that the Florida Bar Appellate Court Rules Committee consider "whether the categories of non-final orders in rule 9.130(a)(3) should be expanded to include the denial of any claim of immunity where the question presented is solely a question of law." Id. at 370 (emphasis added). Upon recommendations from the Florida Bar Appellate Court Rules Committee, the Florida Supreme Court adopted rule 9.130(a)(3)(C)(xi), which now permits appeals from non-final orders that determine that, as a matter of law, a party is not entitled to sovereign immunity.

         In order for a party's entitlement to sovereign immunity from suit to constitute an effective protection, the party must have a meaningful ability to assert its entitlement to sovereign immunity at the very beginning of litigation. To hold that the non-final order must expressly state that a party is not entitled to sovereign immunity, where it is otherwise clear that the trial court made such a determination, would arbitrarily restrict a party's ability to appeal an adverse ruling regarding its entitlement to sovereign immunity from suit in circumstances where the trial court merely issues an unelaborated order denying a motion to dismiss that only raises the party's claim to sovereign immunity from suit. To withhold an appellate remedy to a party who is sovereignly immune from suit as a matter of law until the case has been fully litigated, simply because the trial court has failed or refused to issue an elaborated order, is contrary to the very purpose and intent of the rule change.

         C. The case law does not support the majority's position

         The majority cites to two opinions issued by this Court in support of its position that this Court lacks jurisdiction over the trial court's unelaborated orders denying Citizens' motions to dismiss: Citizens Property Insurance Corp. v. Sosa, 215 So.3d 90 (Fla. 3d DCA 2016), and Miami-Dade County v. Pozos, 42 Fla.L.Weekly D418 (Fla. 3d DCA Feb. 5, 2017). Both cases are easily distinguishable. Pozos is not yet final on appeal, and the trial court specifically stated that it was not ruling on sovereign immunity in Sosa. And, as will be discussed below, the Florida Supreme Court has ...


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